Perilous Failure at Geneva

Perilous Failure at GenevaPhyllis BennisMiddle East International, 30 July 1999

By consistently sacrificing international law to political expediency as it did at the hard-won conference on applying the provisions of the Fourth Geneva Convention to the Occupied Territories, Phyllis Bennis argues that the Palestinian leadership is jeopardising the most important strategic tool available to it in the lop-sided negotiations with Israel.

The New York Times had it pretty much right. The decision to adjourn the hard-fought meeting of signatories to the Fourth Geneva Convention after only a few minutes was part of a US-led, but now Palestinian-backed, effort to avert friction with Israel's new government.

The 15 July meeting of 103 of the 188 signatories to the 1949 Convention was originally called to investigate violations, and consider enforcement, of the Convention's provisions by Israel in the occupied Palestinian territories, including Jerusalem (MEI 603). It was the first
time the signatories had ever gathered to implement its terms. It could have been a cause for celebration that a 50-year-old treaty designed to protect the most vulnerable - unarmed civilians - living under conditions of war, armed conflict, siege or occupation, was finally coming to fruition. It could have joined the other anniversaries of international institutions created in the wake of the horrors of World War II, the United Nations in 1945 or the Universal Declaration of Human Rights in 1948.

But instead of celebrating, the US worked feverishly to undermine the potential of the Convention to do what it is supposed to - protect people. The US is, of course, a signatory. But as with so many other examples, legal requirements and actual policy often differ in Washington.

The signatories' meeting was mandated by a near-unanimous vote of the UN General Assembly, opposed only by the US and Israel. The decision ended up in the Assembly precisely because the US had kept it out of the Security Council. It was assumed to be uncontroversial that the Fourth Geneva Convention applied to Israel in the Occupied Territories. The US had voted in favour of 24 Security Council resolutions saying so, and they are supposed to be binding.

But in 1997 the US vetoed twice in two weeks a Security Council resolution calling for an end to Israel's settlement practices in occupied lands, long viewed as violating UN resolutions and the Geneva Conventions. In response, Palestine's UN ambassador waged a campaign to bring the question to the General Assembly, where the US has no veto. It voted overwhelmingly in early 1999 to convene a meeting in Geneva of the signatories to the Convention. It was originally proposed for mid-April, but was delayed at the request of the Europeans to 15 July.

Ranking administration officials, including Vice-President Gore and Assistant Secretary of State Martin Indyk, quickly announced that Washington not only opposed the resolution but would do whatever it could to make sure the meeting never happened at all. Gore, in a major address to AIPAC, saidwe will work diligently to halt the meeting proposed for 15 July... America will boycott it, and we will urge others to do the same.

The conference's goal was to go beyond the UN's already on-the-record and uncontested (except by Israel itself) finding of applicability of the Convention, and investigate specific Israeli violations, particularly settlements. The possibility of enforcement was remote but certainly under consideration: setting a timetable for the Israeli government to demonstrate compliance, or even imposing multilateral economic or diplomatic penalties against Israel for its violations. The decision to hold the meeting was based on the understanding that the obligation to comply with international law and agreements does not disappear when bilateral negotiations are under way. Specifically, the Palestinian position, backed by the Non-Aligned and somewhat more cautiously by the Europeans, was that international law provides the foundation for ending Israeli occupation of Palestinian land regardless of any bilateral peace process.

When the meeting was finally held in Switzerland, the brief consensus statement reasserting the applicability of the Fourth Geneva Convention to Israel in the Occupied Territories was followed by the immediate adjournment of the meeting, with the understanding that it could be reconvened if the situation on the ground warranted it. In other words, the signatories failed to challenge the view that with Ehud Barak's new Israeli government in office, they should act in a manner that is "not confrontational" - as the PA's Nabil Sha'th put it - but rather give Barak an opportunity to set up his programme of action. Giving up on the law.

It was not surprising that the US, disregarding the overwhelming mandate of the international community, boycotted the conference and did its best to undermine it. Two weeks before the conference, Indyk condemned the UN decision and, setting the tone for Sha'th, said Barak should be given a chance, and that Israel should not be put into a corner like this in the opening days of his new government. US threats continued until the conference opened.

So it was not surprising either that some of the US' closest European friends and the likes of Canada and Australia, already skittish about challenging Washington on the issue closest to their superpower ally's putative heart, vacillated when a new Israeli government claiming a renewed commitment to peace gave them the perfect excuse to delay.

What was surprising was that the Palestinian leadership failed to oppose this thinking. An unidentified Palestinian official said on 12 July that the Authority's decision to adjourn the UN conference indefinitely is meant as a goodwill gesture to Israel's new government.

It was Palestine's permanent observer at the UN, Nasser al-Qidwa, who was widely credited with getting the Assembly to vote in favour of the conference. In his view, the crucial accomplishment was that the meeting convened at all. The conference was held, he told MEI. The precedent was set, and that ended all legal quarrels about who had the authority to convene the signatories' meeting. The decision was taken in principle to meet again. It was an important conference, because there was pressure to avoid it and we had it any way. We had to give things up, this was the maximum available... In regard to the outcome, we got what we thought was the maximum if we wanted the Europeans on board.

The bottom line, Qidwa said, was that this conference had nothing to do with our analysis of the political situation overall. It cannot appear as if we are giving up on international humanitarian law.

But for Palestinians watching from inside the territories surrounded by armed and expanding settlements, for Palestinian and international human rights organisations, and for supporters of Palestinian national rights all over the world who see international law as the last potential weapon of the weaker party in the unbalanced bilateral negotiations between Israel and Palestine, it appears as if the Palestinian leadership has done just that.

Two leading Palestinian human rights organisations, LAW and the Palestine Human Rights Centre, issued an immediate response from Geneva: We deeply regret that the High Contracting Parties meeting here have not fulfilled, and appeared to have repudiated, the mandate they took upon themselves when they voted for the General Assembly resolution calling for this conference. By failing to hold a substantive conference to address pressing questions of enforcement of the Convention, the Parties have undermined and politicised the application of international humanitarian law, not only with regard to this conflict but other and future conflicts as well.

Examined in the context of the Oslo process, the Palestinian turn from the principled, unwavering primacy of international law to a tactical approach in which international law is asserted or compromised on the basis of a perceived need to appear not confrontational with a new Israeli government, is dismayingly consistent. Avoiding confrontation becomes the goal for confidence-building with the new Israeli government, despite the new peace-oriented prime minister's early acceptance of his predecessor's hard-line positions on refugees, Jerusalem, security and existing settlements.

Turning international law into an expendable tool means abandoning the core struggle against occupation, and replacing it with a polite skirmish between contending elites to set new rules for orchestrating and stabilising the terms of a more benign occupation. However much the rhetoric of peace processes and new eras and Rabin reborn fills the airwaves, avoiding confrontation with the occupier means shifting the goal from ending occupation to ensuring stability. And as long as the disparity of power - economic, diplomatic, strategic, military or any other - remains as profound as that between Israel and the Palestinians, stability is going to come at the cost of the latter's rights: national, territorial, civil, political, economic and social.

It is true that the 15 July session in Geneva established the precedent of convening meetings of the High Contracting Parties to the Geneva Conventions. That may prove important to another occupied or besieged population in the future. But for now, with a new round of US-brokered diplomacy under way between Israel - still occupying and still inestimably more powerful - and the Palestinians - still occupied and still disempowered - it is the potential loss of perhaps the most important strategic tool available to the Palestinians that makes the failure of the conference so perilous.

Copyright 1999 Middle East International

About the authors

Phyllis Bennis is a fellow of both TNI and the Institute for Policy Studies in Washington DC where she directs IPS's New Internationalism Project. Phyllis specialises in U.S. foreign policy issues, particularly involving the Middle East and United Nations. She worked as a journalist at the UN for ten years and currently serves as a special adviser to several top-level UN officials on Middle East issues, as well as playing an active role in the U.S. and global peace and Palestinian rights movements. A frequent contributor to U.S. and global media, Phyllis is also the author of numerous articles and books, particularly on Afghanistan, Palestine, Iraq, the UN, and U.S.

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